On sulfuric acid, designer gowns, Harry Belafonte and crime

Brother Greenfield skewers the glitterati in a post dripping with sulfuric acid entitled, Can Tina Brown Make Reform Sexy?* You should read it. If nothing else, take a look at the comments from those who are so offended. As they say, the truth hurts.

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought.

RGK

*I am slightly angry with Scott. ‘Cause of him, I can’t get these damn lyrics out of my head:

That assumes the only reason to try and reduce poverty is to keep the poors from bothering the rest of us by committing crimes. Which, of course, isn’t true.

If you’re getting all “Modest Proposal” on us, you should be more clear about it, because it’s uncertain what you’re satirizing. Unless you’re making the argument at face value, in which case it’s you who’s missing the point.

I am right this moment writing an article for the Federal Sentencing Reporter on actuarial data for use at sentencing. In this post, I am pushing an extreme point, to be frank, to help me refine my thoughts for that article. All the best.

I don’t know if poverty causes crime but I do know that crime causes poverty for both the victim and the criminal. Many people are one paycheck from disaster and becoming a crime victim or being accused of a crime and held in jail can cause the disaster.

Judge, You almost had my Irish up when you renounced the good Dean. From a utilitarian point of view, which kind? Suspect that using people to save money might offend say Kant, Rawls and the like. I prefer my utilitarianism bounded by the limits of human dignity., though not necessarily rights talk. Also you are not taking into account non money costs, so you are really doing a kind of early Chicago Law and Econ. Even most more recent cost benefit work would want to take into account family costs, added stigma to poor generally, harm because of
racial issues, and the like. With difficulties in calculation, I am not sue the deontology teleology debate makes all that much sense in the real world. If you write the article you should first look back on Allen’s Decline of the Rehabilitative Idea, and wonder if our current prison problems are not caused less by crime and more by ideology about crime.
Hard to see how white collar crime is caused by poverty, still have the problem of letting the greater felon loose. Alternate song, Its the same the whole world over, its the poor what gets the blame.

RGK,
What do you think of this:
1. In the United States, we punish actions. The determination of guilt should be based purely on whether or not the person has committed the action (and in some cases similar actions in the past).
2. In the United States, the degree of punishment is based on the character of the punished person. If someone is from a background that makes it more likely that they commit a certain action, we might give them a lesser punishment because, in some way, the egregiousness of their action is lessened by their circumstances. We sympathize with why they did it.

I keep these two logically distinct. The rules of evidence are based on this distinction as well, so it plays well with other parts of the judicial system.

Thus, the correct response is not to throw these people in jail because they are poor, but to use it as a mitigating factor as they are more likely to offend due to difficult circumstances. We sympathize with it, but we do not condone the action.

Right off the bat, that time honored mantra “correlation does not imply causation” comes to mind. But you already knew that. So we can’t immediately claim that imprisoning the poor will directly influence crime or associated costs.

Second, from an economic perspective, as you imprison more of the poor population, transaction costs for doing so increase exponentially. Because of this increase, your argument would lose force in direct relation to each poor person imprisoned. (And good luck trying to get Nebraska governors to build more prisons!).

Third, it seems strange to compare imprisonment of the poor to “eradicating poverty.” What does “eradicating poverty” actually mean? Do we even know what eradicating poverty would entail? If we don’t know these things, is it reasonable to compare eradicating poverty to imprisonment of the poor in a quantitative, economic way?

Now to answer your “utilitarian” point mentioned above, from my meager philosophy student background. Utilitarianism is a colloquial expression for what most philosophers call “consequentialism.” To oversimplify, these are the folks who would say that the ends justify the means, so long as the ends produce more well-being. From that perspective, its difficult to say whether imprisoning the poor is the better option. Your question indicates you’re looking at it from an economic stance, and that’s fair given the federal judiciary’s concern about the expenses of imprisonment and sentencing. But there’s a lot more than economics to consider under the umbrella of “well-being” – so much so that I couldn’t consider it all here.

Moreover, can we say for sure whether long-term imprisonment for the poor would benefit well-being in other areas? Would such action cause social unrest or distrust of the criminal justice system? If so, what is the well-being “cost” for those outcomes?

Ultimately, RGK, I think this question is important, but complex. It invites more difficult questions, and it may never be satisfactorily answered.

Read 18 U.S.C. § 3353(a)(6) and then argue that the “determination of guilt should be based purely on whether or not the person has committed the action (and in some cases similar actions in the past).” Isn’t it true that from the utilitarian perspective of 18 U.S.C. § 3353(a)(6), the protection of the public from future crime demands that the sentencing judge be well informed of all actuarial data that helps him or her assess the risk of re-offense?

Very true. Untangling the true costs of crime and punishment is way hard. But I remind you that a former Vice President won an Academy Award for mumbling stuff about “inconvenient truths.”

You write (persuasively in my view): “I prefer my utilitarianism bounded by the limits of human dignity, though not necessarily rights talk.” Isn’t that precisely what 18 U.S.C. § 3353 tries to do? And doesn’t that effort confuse things so badly that one can construct a strong argument that federal sentencing judges must be schizophrenics in order to comply with the statute?

In answer to your question the statute reads like a cross to a bad criminal law test that asked for a list of reasons for punishment and an administrative agency applying cya by creating a clydosopic list of factors with no weights attached use to review grant or denial of applications .Statute orders judges to whoosh whoosh and hope for the best. But maybe that’s life.

RGK,
By Part 1 of my analysis has nothing to do with the extent of the guilt. It merely determines whether an action has been committed that should be punished, not the extent to which it should be punished. That is a separate analysis, to which the factors you described above apply to the second part.

“Isn’t it true that from the utilitarian perspective of 18 USC § 3553(a)(6), the protection of the public from future crime demands that the sentencing judge be well informed of all actuarial data that helps him or her assess the risk of re-offense?”

That’s already in it, under 18 USC § 3553(a)(2)(A)-(C). I think that a judge should assess the risk of re-offense as a part of the sentencing phase, but not during the guilt phase. To me, that particular thread has nothing to do with whether they committed the offense. It has to do with whether the punishment will discourage others from committing the offense.

Or one could recommend that we trash the sentencing guidelines, formulas, matrices, etc., and go to the Texas system. Each offense is classed into a degree of crime, 2-10, 2-20, 5-99/life, or capital. Certain acts or prior offenses set hard minimums. Then let the jury set punishment, or, if the defendant waives, then let the judge set punishment.

There is no need to use a complex system when a simple, discretionary system will work.

We supposedly selected good people for the jury and as judges, let ’em do their job.

It is possible that for a common offense that actuarial data on the behavior of others could be used to assess the risk of similar behavior by an individual. I doubt that would be true for an uncommon offense.

For several years I took CJA appeals from different circuits. Great experience. One sentencing transcript has always stuck with me. It was a federal judge from Kentucky who explained to the defendant that, if by the time an adult gets to be over the age of twenty-one he or she doesn’t understand that they cannot go around committing serious crimes (trafficking in narcotics, keeping semi-automatic weapons and ammunition to engage in that trade, etc…), a short sentence is just not enough time for meaningful rehabilitation. The judge wasn’t being sarcastic, I thought he was really trying to explain why he had to impose the sentence he imposed. I had the sense that this judge felt a responsibility to both the public and the defendant.

Build the number of prisons that you have to have to keep the public (which includes the poor) safe. Do what you can to help the poor out of poverty.

I still think that sentencing is best left to the judge, and not the jury. A judge is confronted, unfortunately, with making sentencing decisions all the time. A juror may only serve on a jury once in their life. A civilian judge has a better opportunity to measure a convicted defendant against others similarly situated– and may have a better idea when she can cut someone a break. That said, I served as a Navy JAG early in my career, and I found that members panels (the military analogue to a civilian jury), which were obligated to determine guilt or innocence and sentence– tended to be lighter sentencers.

Thank you for another interesting blog. It gives me a lot to think about.

And…if you missed it between the adjustments along your way have some Grand Master Flash (one of the first commercial successes to change the entire sound) to this day his riffs are covered every- which way. Headphones!

What’s a few decades when relevant comes home to roost?

Was there a bake sale at the American Justice Summit 2014 or what?

P.S. when you and the “brother” get it together in agreement or not its like stereophonic sound carrying analog right on through the HDMI cable while summoning the rca cables of change.

I think the Swedish research may have overlooked two things that criminologists have discovered. There is strong empirical reason to believe that family rearing practices and family structure are statistically correlated with risk to reoffend according to a meta-data analysis of 131 different research efforts. See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 S.M.U. L. Rev. 1330, 1367 (2011). To the extent that poverty contibutes to these twin factors, poverty may be very important in understanding crime, particularly the risk to reoffend.

I think important results are from the study of siblings where the family structure and child rearing practices are the same or very similar but the outcomes can be very different. One of the important differences involves the decision about obtaining a high school diploma. One of the most conspicuous characteristics of Iowa prison inmates is their very low level of educational attainment.

If indeed poverty is a causal factor in the commission of crime, there is another logical alternative to long incarcerations for poor people. Pay them not to commit crimes. For instance, suppose that a rich person would be sentenced to 4 years and, under the long sentence scenario, a poor person would be sentenced to 8 years. Instead of the long sentence, sentence the poor person to 4 years, and then, for the remaining time up to 8 years, pay the person the same as it would cost to keep him in prison. That, plus anything that the person might earn, should lift him out of poverty for that time, thus lessening the probability of reoffense. In addition, if the person should commit another crime, he would forfeit the payments. (It would not be necessary to convict the person of a crime, you could have a civil trial with a lesser burden of proof.) That would give the person an additional incentive to go straight. Also, if the person were released early, the payments would start sooner, thus giving the person an incentive to be a model prisoner. The money cost is exactly the same as that of a long sentence, and in addition, with the person out of prison it is likely that he would make some contributions to society.

Important statistical point (which may already have been made. I haven’t read all the comments.): Even if poverty is correlated with the commission of a crime, it does not follow that, given that a crime has been committed, poverty is correlated with reoffending.

The correlation could even go the other way. A rich man who commits a crime, despite his advantages, may be more likely to reoffend than a poor man who committed a crime under straitened circumstances. The rich man has no excuse.